Education on trial: Freedom of association clashes with the public purse

Tracy Sherlock, Vancouver Sun07.05.2014

The dispute between B.C.’s teachers and their employer is complicated by two B.C. Supreme Court decisions that found the provincial government violated teachers’ constitutional rights more than a decade ago when it removed rules about class size and class composition from the teachers’ contract.Postmendia
/ Postmedia

UBC law professor Joel Bakan believes the dispute between teachers and the B.C. government about the right to bargain class size and composition will end up in the Supreme Court of Canada.Jason Payne
/ Vancouver Sun

The dispute between B.C.’s teachers and their employer is complicated by two B.C. Supreme Court decisions that found the provincial government violated teachers’ constitutional rights more than a decade ago when it removed rules about class size and class composition from the teachers’ contract.

Teachers have been on strike since June 17, after 16 months of failed negotiations, and there is no end in sight. Although the two sides have moved closer on wages (the government is offering seven per cent over six years; the BCTF wants eight per cent over five years), the implications of this court case keep the two sides far apart.

In 2002, the B.C. government removed clauses guaranteeing teachers’ working conditions from their contract and legislated a prohibition from bargaining over those same issues. These measures were found by B.C. Supreme Court Justice Susan Griffin to have violated the teachers’ constitutional right to freedom of association.

But what exactly is freedom of association?

“A very trite example is what if you said to people you’re allowed to play baseball, but not allowed to form a team. The difference between being able to play baseball and being able to form a team is your freedom of association. Anytime you want to do something with other people, freedom of association comes into play,” said Joel Bakan, University of British Columbia law professor and a constitutional law scholar.

It may seem a stretch, but Canadian courts have determined that freedom of association includes the right for a union to collectively bargain with an employer over working conditions.

“The freedom of workers to associate has long been recognized internationally and in Canada as an important aspect of a fair and democratic society,” Griffin said in her January 2014 ruling. “Collective action by workers helps protect individuals from unfairness in one of the most fundamental aspects of their lives, their employment.”

The Canadian Constitution, the highest law in the country, includes the Charter of Rights and Freedoms, which guarantees freedom of association.

“Part of what it means to be part of Canada is that we follow the Constitution of the country,” Bakan said. “One of the things that makes Canada different from what happened in Yugoslavia when it split apart or what’s happening in Ukraine today is that we’re governed by the rule of law. Our Constitution is the supreme law of the nation and the provinces and the federal government must comply with it.”

And if the government doesn’t comply?

“You can’t put them in jail, but what I can say is that if provinces start not complying with it and thumbing their noses at court decisions that say they must, then I think we are in serious trouble as a nation,” Bakan said.

In 2011, Griffin gave the government a year to rectify the unconstitutional legislation. After a year, the government enacted legislation that the judge called “virtually identical” to the legislation she had already ruled violated the teachers’ rights. Griffin’s second ruling also found that the government had bargained in bad faith in 2012, hoping to provoke a strike to increase support for imposing legislation.

The provincial government appealed that decision and the case is scheduled to be heard in the B.C. Court of Appeal in October.

Despite the two B.C. Supreme Court rulings, the government is not flouting the law at this point, because it is still within its legal right to appeal up to the country’s highest court, which is likely.

While the case may take several more years to settle, the process and time is worth it to make sure the decision is the right one and is backed up by the country’s highest court, advocates on both sides say.

Griffin’s 2014 decision buttresses the teachers’ demand for a $225-million annual fund to hire new teachers and deal with class size and composition issues and a second $225-million fund to deal with retroactive grievances by members, as well as to pay for improved medical benefits, professional development and preparation time. The BCTF proposes these funds as interim measures, until the court case is decided.

The provincial government is offering to continue a $75-million annual Learning Improvement Fund, and says it can’t afford the BCTF’s terms. The employer’s most recent offer includes a clause that says if either party is dissatisfied with the outcome of the court case, it could give written notice to terminate the collective agreement.

Education Minister Peter Fassbender said last week that the government will not legislate a settlement and that their last offer is as far as they’re prepared to go.

“We are not going to go into deficit to fund what we think are unreasonable demands by the BCTF,” Fassbender said, adding that teachers’ demands are unaffordable. “The government cannot go there. Our responsibility is also to the taxpayers of the province.”

B.C. Teachers’ Federation president Jim Iker insists the government must put more funding on the table to get a deal.

“Christy Clark’s 2002 legislation, twice ruled unconstitutional, allowed this government to strip $275 million a year from B.C.’s education system,” Iker said. “The result is 12 years of underfunding that has led B.C. to become the second worst province on per student funding. It’s time to start closing that gap so we can start a new school year in September with additional funding to properly support B.C. students.”

The difference stems from the long-running court case, which found the government had illegally stripped the right to bargain class size and composition issues from the teachers’ contract in 2002.

The government of the day also deleted parts of the Hospital Employees’ Union contract, notably to do with contracting out of work. The HEU and the government took their battle to the Supreme Court, which ruled in June 2007 that legislation introduced by the B.C. government in 2002, at the same time as the teachers’ legislation, was unconstitutional because it stripped out and prohibited bargaining on contracting out provisions.

In 2008, the government passed legislation removing the provisions that were ruled unconstitutional. But Mike Old, communications director of the Hospital Employees’ Union, said it has still been a struggle to bargain on contracting out.

“In subsequent rounds of collective bargaining (in 2010, 2012 and 2014) we have negotiated provisions ... that place limits on contracting out. For example, the agreement that we just ratified this week caps contracting out at 100 full-time equivalents a year,” Old said, adding that there’s about 47,000 full- and part-time, and casual employees in the bargaining unit, “So in that sense, our win at the Supreme Court of Canada has given us the ability to put contracting out on the bargaining table, and negotiate limits on contracting out. That’s important in terms of our ability to protect jobs and services. But we’ve had to push hard for any improvements we’ve made to working conditions.

“The Bill 29 decision hasn’t made health employers and government any easier to deal with. They just can’t insist that it’s illegal to talk about contracting out at the bargaining table.”

Indeed, Bakan says that although the Supreme Court ruled that unions have the right to bargain on working conditions that are deemed to be “of central importance” — but that doesn’t mean they can dictate the terms, such as the number of students in a class.

“You have to have enough of the rights to make it meaningful. What the court says it’s not a freedom to bargain about anything under the sun, but if you’re not allowed to bargain over the things that are of central importance to you, then you’re being deprived of the right to bargain collectively,” Bakan said.

Jordan Bateman, B.C. director of the Canadian Taxpayers Association, an organization dedicated to lower taxes, less waste and accountable government, said his group supported the government appeal, because a win for the teachers would cost taxpayers a significant amount of money.

“Do courts have to consider the ability of taxpayers to afford their judgments? We obviously would prefer that they do,” Bateman said. “Despite the idea that government is a bottomless well of money, all of that money does come from taxpayers, so we want to make sure that those interests are protected. At the same time, it’s a tricky one because any time you spin out and give government more power over people’s constitutional rights, that could actually come back to haunt specific cases, such as property rights cases or whatnot. It’s a very complicated issue.”

Although the grounds for the government’s appeal are not public, Bakan said the lack of ability of a government to afford something is not going to fly as a legal argument, based on the 2007 decision.

“We as a society, have to pay for living in a society where constitutional rights are respected. It costs money to respect constitutional rights. When we respect the rights of an accused in the criminal justice process, it would be a lot cheaper to just throw them in jail. It costs money to be in a society that is committed to enlightened constitutional rights and values and that’s really at bottom what we’re talking about here,” Bakan said.

The B.C. government has been taken to task by the International Labour Organization several times, including for the teachers and health cases, Bakan said.

“Canada as a country is part of a United Nations treaty that agreed to respect freedom of association. The government of B.C. has been found to be in breach of that treaty eight or nine times now, including in relation to teachers and in relation to health care workers in relation to the very bills we’re talking about,” Bakan said, adding that the Supreme Court of Canada was influenced by the international findings in the 2007 health workers decision.

Both Bateman and Bakan said no matter who wins the appeal this October, the case will probably end up in the Supreme Court of Canada.

“It’s not just B.C. that has this issue as far as the ability to pay. It’s a national issue and I think that’s why were going to see this in the Supreme Court of Canada. Governments want to know precisely where their authority begins and ends,” Bateman said. “I think there are other governments watching closely. If the Supreme Court of Canada interprets this case a certain way, that will have ripple effects all across the nation.”

Bakan also said if the Supreme Court of Canada decides against the government, which he expects it will, the government will comply.

“I would be absolutely shocked if that didn’t happen, it would be unprecedented. It’s the final court in the land,” Bakan said.

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Education on trial: Freedom of association clashes with the public purse

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